Quote from Madison:
no. you are confusing copyright law with licensing. the reason one cannot copy a book he purchases is because of the copyright law, not because of a restrictive license. it is the law that prevents you from copying, not the intentions of the holder.
Books are sold under a combination implied and explicit license - check the explicit terms following the copyright mark in a book
"...All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without written permission from the publisher...".
The act of buying a book doesn't buy the copyrighted material. It buys the physical incarnation of the book and a license to use the copyrighted material. It's always a license to use because you don't own the rights in the actual copyrighted material.
Quote from Madison:
that's the point - they have offered a license in place of what consumers believe to be a "sale," similar to EULAs accessible after sale and other underhanded tactics of software companies.
That's an error on the part of the consumer then. No one is EVER selling them the actual copyrighted material. They are always receiving a license to use (whether implicit with default characteristics or explicit with specific overriding terms). As a consumer you NEVER buy the actual copyrighted work. You get to use but not own the contents of a copyrighted book, DVD, videotape, software, video game, etc. Anyone who believes they're buying the actual copyrighted material and therefore have unlimited rights to do anything they want with it is simply wrong.
Quote from Madison:
also, the term "fair use" seems to have been used as describing a use that is allowable under licensing conditions. it does not mean only that, it refers to a distinct concept.
Yes, it is a distinct concept that operates within the boundaries of the access granted to you by the copyright owner. For instance, if a copyrighted software program is licensed to you for use on up to two machines that you own and use - then that access restriction defines the physical boundaries of fair use. You can't arbitrarily decide to use it on five computers or let your brother install it without violating the access license and infringing the copyright.
Quote from Madison:
the same rules apply to Shakespeare and Bach and other works that have artistic value. at some point, those works should pass into the hands of the public, at least under the current scheme.
Copyrighted material does eventually fall into the public domain (after the artist's life + 70 years), but even if it didn't - so what? Unlike patents, what's the irrepairable harm or impedence to creativity if everytime someone performs one of Shakespeare's works they had to kick a royalty payment to his decendents (or whoever bought the rights). Shakespeare and Bach copyrights are specifically germain because they've long expired already, but realistically what would be the manifest harm if they hadn't?
Quote from Madison:
but the real argument is use of DMCA and technology to protect works that are not protectable. say some media company has a film that loses protection next year - under the current trend, by placing that film on copy-restricted media, it makes reproducing the work criminal even after it has passed to the public domain - the act of accessing the work is itself a crime, allowing them to prevent distribution of the work and circumvent the copyright term.
First off - the DMCA explictly prohibits defeat of access restrictions not defeat of copy restrictions. It's very unlikely that you'll be hitting an expiring copyright that anyone will care about in the next couple of decades, but let's suppose your scenario happens. You buy a DVD with a movie that will expire its copyright next year. Since you bought the DVD and therefore have access rights to it (within whatever defined boundaries the DVD license specifies - e.g., geographic limitations), you are already allowed (even under DMCA) to copy it (even if you have to defeat copy protection mechanics) as long as that copy and its use falls within the bounds of fair use.
Now let's say that a year goes by and the copyright expires. Since there's no longer a copyright, the DMCA no longer applies to that DVD. So if necessary, you can copy it and distribute it and even if necessary defeat any access restriction mechanism used.
But the scenario is so unlikely on any realistic timescape that it's not much of an argument against mechanical copyright protections. Plus, we're going to be through multiple new technologies before any material expirations occur and who knows what the landscape will look like in 20+ years.
If you want to argue that access control and copy protection mechanics should have to take into consideration copyright expiration dates - fine, that might be a reasonable thing for the legislature to fold into an amendment to the DMCA.
But if you're arguing that because the copyright on some DVD you bought might expire in 40 years so they shouldn't be allowed to use any access control and copy protection mechanics at all on it - that doesn't fly.
